A defendant is charged with various sexual crimes against the alleged victim, a 15 year-old. To support his defense, the defendant seeks to introduce into evidence a comment that the alleged victim made on her MySpace page, where she referred to herself as a “bitch/whore.” Should the court admit or exclude this evidence? That was the question confronted by the Court of Appeals of Texas, Waco, in its recent opinion in Dale v. State, 2012 WL 1382446 (Tex.App.-Waco 2012).

In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, reputation or opinion evidence of the past sexual behavior of an alleged victim of such crime is not admissible.

In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, evidence of specific instances of an alleged victim’s past sexual behavior is also not admissible….

The Court of Appeals of Texas, Waco, addressed the issue under Rule 412(b), initially noting that

“Sexual behavior” is not defined in the rules of evidence.…Nevertheless, this Court noted that, prior to the codification of rule 412, the Court of Criminal Appeals reviewed the definition of “sexual conduct” in…the precursor to rule 412….The Court found “sexual” to mean “of or pertaining to sex; sexual matters.”

The court then found that

In the present case, [the alleged victim] referred to herself as a “bitch/whore” on her MySpace page. The plain and ordinary meaning of the term “whore” is “a woman who engages in sexual acts for money.” MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 1351 (10th ed.1993). On the other hand, the plain and ordinary meaning of the term “bitch” is “a lewd or immoral woman.”…We believe that these terms are commonly used to reference “sexual matters,” which would violate not only the agreed-upon motion in limine between the parties in this case but also rule 412.

Finally, the court found that none of the exceptions to Rule 412(b) were applicable in the case before it and thus found that the trial court properly excluded the subject evidence.

I generally agree with the court’s conclusion but wonder why the court didn’t simply treat the evidence as Rule 412(a) evidence rather than Rule 412(b) evidence, which is subject to possible exceptions. Plainly, the MySpace evidence didn’t reference any specific instances of the alleged victim’s prior sexual behavior but instead contained the opinion, either by the alleged victim or others, that the alleged victim was a bitch/whore. Therefore, the evidence was Rule 412(a) evidence.